15A NCAC 02H.0126 is proposed for readoption without substantive changes as follows:

Transcription

1 A NCAC 0H.01 is proposed for readoption without substantive changes as follows: 1A NCAC 0H.01 STORMWATER DISCHARGES (a) Stormwater discharges subject to NPDES National Pollutant Discharge Elimination System (NPDES) permitting are addressed in this section, which incorporates, supplements and elaborates on the federal rules on stormwater NPDES discharges. Other stormwater control requirements are addressed in Section 0H.00 entitled "Stormwater Management", "Stormwater Management," but may also be addressed in sections dedicated to particular water classifications or circumstances. (b) Facilities and Regulated Entities (REs), (REs) subject to NPDES permitting, permitting shall be issued NPDES permits for stormwater discharges to surface waters, waters in accordance with this Rule, 1A NCAC 0H Rules.0 through 0H.01,.01 of this Subchapter, and United States Environmental Protection Agency (EPA) regulations 0 CFR 1.1, 1., and 1. through 1. 1., which are hereby incorporated by reference including any subsequent amendments. reference. These federal regulations can be accessed on the world wide web at at State regulations can be accessed on the world wide web at History Note: Authority G.S ; 1-1.; 1-1.1; 1-1.(a)(1); Eff. November 1, 1; Amended Eff. August, 1; Temporary Amendment Eff. November 1, 00; Temporary Amendment returned to Agency by Rules Review Commission on January, 00; Amended Eff. July, 01.

2 A NCAC 0H.0 is proposed for readoption with substantive changes as follows: 1A NCAC 0H.0 DEFINITIONS DEFINITIONS: NPDES MS STORMWATER Federal definitions for NPDES discharges at 0 C.F.R. 1. and 1.(b), 1.(b)(1 July Edition) are incorporated herein by reference including any subsequent editions. These federal regulations can be accessed at no cost at State definitions for NPDES discharges are set out in G.S. 1-1 through G.S. 1-1 and 1A NCAC 0H.0. As The definition of any word or phrase used in the NPDES municipal separate storm sewer system (MS) stormwater program, the following additional definitions apply: program shall be the same as given in Rule.0 of this Subchapter. Other words and phrases are defined as follows: (1) The definitions set out in 1A NCAC 0H.0 (Definitions). ()(1) "Division" means the Division of Water Quality Energy, Mineral, and Land Resources in the Department. () MS means municipal separate storm sewer system. () "Planning jurisdiction" means the territorial jurisdiction within which a municipality exercises the powers authorized by Article 1 of Chapter A of the General Statutes, or a county may exercises the powers authorized by Article 1 of Chapter 1A of the General Statutes. () "Public entity" means the United States; States, the State; State, a city, village, township, county, school district, public college or university, or single-purpose governmental agency; agency, or any other governing body that is created by federal or State law. () "Regulated entity" means any public entity that must obtain a Phase II National Pollutant Discharge Elimination System (NPDES) permit for stormwater management for its municipal separate storm sewer system (MS). () "Sensitive receiving waters" means any of the following: (a) Waters that are classified as high quality, outstanding resource, shellfish, trout, or nutrient sensitive waters in accordance with Paragraphs (d) and (e) of 1A NCAC 0B.01.01, (Procedures for Assignment of Water Quality Standards General Procedures). 1A NCAC 0B.000, and 1A NCAC 0B.001. (b) Waters that are occupied by or designated as critical habitat for aquatic animal species that are listed as threatened or endangered by the United States Fish and Wildlife Service or the National Marine Fisheries Service under the provisions of the Endangered Species Act of 1 (Pub. L. No. -0; Stat. ; 1 U.S.C., et seq.), as amended. (c) Waters for which the designated use, best usage, as described by the classification system set out forth in Paragraphs (c), (d), and (e) of 1A NCAC 0B.01.01, (Procedures for Assignment of Water Quality Standards General Procedures), 1A NCAC 0B.000, and 1A NCAC 0B.001 have been determined to be impaired in accordance with the requirements of subsection (d) of U.S.C.. This federal code can be accessed at no cost at 1

3 () "Significant contributor of pollutants" means a municipal separate storm sewer system (MS) or a discharge that contributes to the pollutant loading of a water body or that destabilizes the physical structure of a water body such that the contribution to pollutant loading or the destabilization may reasonably reasonably be expected to adversely affect have an adverse impact on the quality and uses best usage of the water body. Uses Best usage of a water body shall be determined pursuant to 1A NCAC 0B.0 through 1A NCAC 0B.0 (Classifications and Water Quality Standards Applicable to Surface Waters and Wetlands of North Carolina) and 1A NCAC 0B.000, et seq. (Assignment of Stream Classifications). () "Total maximum daily load (TMDL) implementation plan" means a written, quantitative plan plan, and analysis for attaining and maintaining water quality standards in all seasons for a specific water body and pollutant. History Note: Authority G.S. 1-1; 1-1.1; 1-1.; 1-1.(a)(1); Eff. July, 01.

4 A NCAC 0H.0 is proposed for readoption with substantive changes as follows: 1A NCAC 0H.0 NPDES MS STORMWATER: DESIGNATION AND PETITION PROCESS (a) Designation of Regulated Entities. A public entity that owns or operates a municipal separate storm sewer system (MS) may be designated as a regulated entity through federal designation, through a the State designation process, or under a total maximum daily load (TMDL) implementation plan plan, as provided in this Paragraph. (1) Federal designation. A public entity that owns or operates a municipal separate storm sewer system (MS) may be designated as a regulated entity pursuant to 0 Code of Federal Regulations CFR 1.. These federal regulations are available at no cost at () State designation process. The Commission shall designate a public entity that owns or operates a municipal separate storm sewer system (MS) as a regulated entity as provided in Subparagraphs ()(A) through (F) below: (A) Designation schedule. The Commission shall implement the designation process in accordance with the schedule for review and revision of basinwide water quality management plans as provided in G.S. 1-1.B(c). (B) Identification of candidate regulated entities. The Commission shall identify a public entity as a candidate for designation as a regulated entity if the municipal separate storm sewer system (MS) either: (i) Discharges discharges stormwater that has the potential to adversely have an adverse impact on water quality. An adverse impact on water quality includes any activity that causes or contributes to a violation of water quality standards, including, but not limited to, any activity that impairs designated uses or that has a significant biological or habitat impact; quality; or (ii) Serves serves a public entity that has not been designated pursuant to Item (1) of this Paragraph and that has either a population of more than,000 or more than,000 housing units units, and either a population density of 1,000 people per square mile or more or more than 00 housing units per square mile. (C) Notice and comment on candidacy. The Commission shall notify each public entity identified as a candidate for designation as a regulated entity. After notification of each public entity, the Commission shall publish a list of all public entities within a river basin that have been identified as candidates for designation. This list shall be published on the Division website at The Commission shall accept public comment on the proposed designation of a public entity as a regulated entity for a period of not less than 0 days. days from the date of publication. (D) Designation of regulated entities. After review of the public comment, the Commission shall make a determination on designation for each of the candidate public entities. The Commission shall designate a candidate public entity that owns or operates a municipal 1

5 separate storm sewer system (MS) as a regulated public entity only if the Commission determines either that: (i) The the public entity has an actual population growth rate that exceeds 1. times the State population growth rate for the previous years; (ii) The the public entity has a projected population growth rate that exceeds 1. times the projected State population growth rate for the next years; (iii) The the population of the public entity has an actual is more than 1 percent greater than its population increase that exceeds 1 percent of its previous population for the previous two years; years prior to the publication of the list identifying the public entity as a candidate for designation. (iv) The the municipal separate storm sewer system (MS) discharges stormwater that adversely has adverse impacts on water quality; or (v) The the municipal separate storm sewer system (MS) discharges stormwater that results in a significant contribution of pollutants to receiving waters, taking into account the effectiveness of other applicable water quality protection programs. To determine the effectiveness of other applicable water quality protection programs, the Commission shall consider the water quality of the receiving waters and whether the waters support the uses set out in Paragraphs (c), (d), and (e) of 1A NCAC 0B.01 (Procedures for Assignment of Water Quality Standards General Procedures) and the specific classification of the waters set out in 1A NCAC 0B.000, et seq. (Assignment of Stream Classifications). best usages. (E) Notice of designation. The Commission shall provide written notice to each public entity of its designation determination. For a public entity designated as a regulated entity, the notice shall state the basis for the designation and the date on which an application for a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management must shall be submitted to the Commission. (F) Application schedule. A public entity that has been designated as a regulated entity pursuant to this subdivision must shall submit its application for a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management within 1 months of the date of notification. () Designation under a total maximum daily load (TMDL) implementation plan. The Commission shall designate an owner or operator of a small municipal separate storm sewer system (MS) as a regulated entity if the municipal separate storm sewer system (MS) is specifically listed by name as a source of pollutants for urban stormwater in a total maximum daily load (TMDL) implementation plan developed in accordance with subsections (d) and (e) of U.S.C.. This federal code is available at no cost at The Commission shall provide written notice to each public entity of its designation determination. For a public entity

6 designated as a regulated entity, the notice shall state the basis for the designation and the date on which an application for a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management must shall be submitted to the Commission. A public entity that has been designated as a regulated entity pursuant to this Item must shall submit its application for a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management within 1 months of the date of notification. (b) Petition Process. A petition may be submitted to the Commission to request that an owner or operator of a municipal separate storm sewer system (MS) or a person who discharges stormwater be required to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management as follows: (1) Connected discharge petition. An owner or operator of a permitted municipal separate storm sewer system (MS) may submit a petition to the Commission to request that a person who discharges into the permitted municipal separate storm sewer system (MS) be required to obtain a separate a Phase II National Pollutant Discharge Elimination System (NPDES) NPDES permit for stormwater management. The Commission shall grant the petition and require the person to obtain a separate a Phase II National Pollutant Discharge Elimination System (NPDES) NPDES permit for stormwater management if the petitioner shows that the person's discharge flows or will flow into the permitted municipal separate storm sewer system (MS). () Adverse impact petition. Any person may submit a petition to the Commission to request that an owner or operator of a municipal separate storm sewer system (MS) or a person who discharges stormwater be required to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management as follows: (A) Petition review. The Commission shall grant the petition and require the owner or operator of the municipal separate storm sewer system (MS) or the person who discharges stormwater to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management if the petitioner shows any of the following: (i) The municipal separate storm sewer system (MS) or the discharge discharges stormwater or has the potential to discharge stormwater that may cause or contribute to a water quality standard violation; (ii) The municipal separate storm sewer system (MS) or the discharge provides a significant contribution of pollutants is a significant contributor of pollutants to receiving waters; or (iii) The municipal separate storm sewer system (MS) or the discharge is specifically listed by name as a source of pollutants for urban stormwater in a total maximum daily load (TMDL) implementation plan developed in accordance with subsections (d) and (e) of U.S.C..

7 (B) Types of evidence for required showing. Petitioners may make the required showing by providing to the Commission the following information: (i) Monitoring monitoring data that includes, at a minimum, includes representative sampling of the municipal separate storm sewer system (MS) or discharge and information describing how the sampling is representative. The petitioner must shall notify the owner or operator of the municipal separate storm sewer system (MS) or the person who discharges stormwater of its intent to conduct monitoring activities prior to conducting those activities; (ii) Scientific scientific or technical literature that supports the sampling methods; (iii) Study studies and technical information on land uses in the drainage area and the characteristics of stormwater runoff from these land uses; (iv) A a map that delineates the drainage area of the petitioned entity; the location of sampling stations; the location of the stormwater outfalls in the adjacent area of the sampling locations; general features, including, but not limited to, including surface waters, major roads, and political boundaries; and areas of concern regarding water quality; (v) For for stormwater discharges to impaired waters, documentation that the receiving waters are impaired or degraded and monitoring data that demonstrates that the municipal separate storm sewer system (MS) or discharge contributes pollutants for which the waters are impaired or degraded; or (vi) For for stormwater discharges to nonimpaired waters, monitoring data that demonstrates that the owner or operator of the municipal separate storm sewer system (MS) or the person who discharges stormwater is a significant contributor of pollutants to the receiving waters. (C) Water quality protection program offset. If the petitioner makes the required showing, the Commission shall review the effectiveness of any existing water quality protection programs that may offset the need to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management. To determine the effectiveness of other applicable water quality protection programs, the Commission shall consider the water quality of the receiving waters and whether the waters support the uses set out in Paragraphs (c), (d), and (e) of 1A NCAC 0B.01 (Procedures for Assignment of Water Quality Standards General Procedures) and the specific classification of the waters set out in 1A NCAC B.000, et seq. (Assignment of Stream Classifications). best usages. The Commission may deny the petition if it finds that existing water quality protection programs are adequate to address stormwater impacts on sensitive receiving waters and to ensure compliance with a TMDL implementation plan. () Petition administration. The Commission shall process petitions in the following manner:

8 (A) The Commission shall only accept petitions submitted on Department forms. (B)(A) A separate petition must shall be filed for each municipal separate storm sewer system (MS) or discharge. (C)(B) The Commission shall evaluate only complete petitions. those petitions that contain all information required by Part ()(B) of this Paragraph. The Commission shall make a determination on the completeness of a petition within 0 days of receipt of the petition, or it shall be deemed complete. If the Commission requests additional information, the petitioner may submit additional information; information and the Commission will shall determine, within 0 days of receipt of the additional information, whether the information completes the petition. (D)(C) The petitioner shall provide a copy of the petition and a copy of any subsequent additional information submitted to the Commission to the chief administrative officer of the municipal separate storm sewer system (MS) or the person in control of the discharge within hours of each submittal. (E)(D) The Commission shall post all petitions on the Division Web site website and maintain copies available for inspection at the Division's office. The Commission shall accept and consider public comment for at least 0 days from the date of posting. (F)(E) The Commission may hold a public hearing on a petition and shall hold a public hearing on a petition if it receives a written request for a public hearing within the public comment period, period and the Commission determines that there is a significant public interest in holding a public hearing. The Commission's determination to hold a public hearing shall be made no less than 1 days after the close of the public comment period. The Commission shall schedule the hearing to be held within days of the close of the initial public comment period and shall accept and consider additional public comment through the date of the hearing. (G)(F) An additional petition for the same municipal separate storm sewer system (MS) or discharge received during the public comment period shall be considered as comment on the original petition. An additional petition for the same municipal separate storm sewer system (MS) or discharge received after the public comment period ends and before the final determination is made shall be considered incomplete and held pending a final determination on the original petition. (i) If the Commission determines that the owner or operator of the municipal separate storm sewer system (MS) or the person who discharges stormwater is required to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management, any other petitions for that the same municipal separate storm sewer system (MS) or discharge that were held shall

9 be considered in the development of the Phase II National Pollutant Discharge Elimination System (NPDES) NPDES permit for stormwater management. (ii) If the Commission determines that the owner or operator of the municipal separate storm sewer system (MS) or the person who discharges stormwater is not required to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management, an additional petition for the municipal separate storm sewer system (MS) or discharge must shall present new information or demonstrate that conditions have changed in order to be considered. If new information is not provided, the petition shall be returned as substantially incomplete. (H)(G) The Commission shall evaluate a petition within days of the date on which it is determined to be complete. If the Commission determines that the owner or operator of the municipal separate storm sewer system (MS) or the person who discharges stormwater is required to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management, the Commission shall notify the owner or operator of the municipal separate storm sewer system (MS) or the person who discharges stormwater within 0 days of the requirement to obtain the permit. The owner or operator of the municipal separate storm sewer system (MS) or the person who discharges stormwater must shall submit its application for a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management within 1 months of the date of notification. (c) Exemption. A municipality with a population of less than 1,000, including a municipality designated as an urbanized area under the most recent federal decennial census, is not required to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management unless the municipality is shown to be contributing to an impairment of State waters, as determined under the requirements of U.S.C. (d). (d) Waiver. The Department may waive the requirement for a Phase II National Pollutant Discharge Elimination System (NPDES) NPDES permit for stormwater management requirement pursuant to 0 Code of Federal Regulations CFR 1.(d) or (e). History Note: Authority G.S ; 1-1.; 1-1.1; 1-1.(a)(1); Eff. July, 01.

10 1A NCAC 0H.01 is proposed for readoption as a repeal as follows: 1A NCAC 0H.01 DEVELOPMENT IN URBANIZING AREAS History Note: Authority G.S ; 1-1.; 1-1.1; 1-1.(a)(1); S.L. 0-0; Eff. July, 01; Amended Eff. July 1, 01.

11 A NCAC 0H.01 is proposed for readoption with substantive changes as follows: 1A NCAC 0H.01 NPDES MS STORMWATER: PROGRAM IMPLEMENTATION (a) Permit Standards. To obtain a Phase II National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management, an applicant shall, to the extent authorized by law, shall develop, implement, and enforce a stormwater management plan approved by the Commission that satisfies the six minimum control measures "minimum control measures" required by 0 Code of Federal Regulations CFR 1.(b). These federal regulations can be accessed at no cost at The evaluation of the post-construction stormwater management measures required by 0 Code of Federal Regulations CFR 1.(b)() shall be conducted as provided in Rule.01(a) of this Section. Rule.1 of this Subchapter. Regulated entities may propose using any existing State or local program that relates to the minimum control measures to meet, either in whole or in part, the requirements of the minimum control measures. (b) Implementation Schedule. The requirements of this act shall be implemented as follows: (1) A regulated entity must apply within 1 months of notification by the Department that the regulated entity is subject to regulation pursuant to Rules.0(a) and (b), (b) and.01 of this Section. Rule.1 of this Subchapter; () Public education and outreach minimum measures shall be implemented no later than within 1 months from date of permit issuance. issuance; () A regulated entity must shall implement its post-construction program no later than months from the date the permit is issued. issued; and () The Department shall include permit conditions that establish schedules for implementation of each minimum measure of the regulated entity's stormwater management program based on the submitted application so that the regulated entity fully implements its permitted program within five years from permit issuance. (c) Federal and State Projects. The Commission shall have jurisdiction, to the exclusion of local governments, to issue a National Pollutant Discharge Elimination System (NPDES) a NPDES permit for stormwater management to a federal or State agency that applies to all or part of the activities of the agency or that applies to the particular project. If a federal or State agency does not hold a Phase I or Phase II a MS National Pollutant Discharge Elimination System (NPDES) NPDES permit for stormwater management that applies to the particular project, then the project is shall be subject to the stormwater management requirements of this Rule as implemented by the Commission or by a local government. The provisions of G.S. 1A- and G.S. A- apply to the implementation of this Rule. (d) General Permit. The Commission shall develop and issue a Phase II National Pollutant Discharge Elimination System (NPDES) NPDES general permit for stormwater management. The general permit requirements for postconstruction stormwater management measures required by 0 Code of Federal Regulations CFR 1.(b)() shall require a permittee to meet the standards set out forth in Rule.01(a) of this Section but shall not impose any requirement on the permittee that exceeds the standards set out in Rule.01(a) of this Section. Rule.1 of this Subchapter. After the Commission has issued a Phase II National Pollutant Discharge Elimination System (NPDES) 1

12 general permit for stormwater management, a public entity that has applied for a permit may submit a notice of intent to be covered under the general permit to the Commission. The notice of intent shall be submitted to the Division accompanied by the application fee as set forth in G.S. 1-1.D. The Commission shall treat an application for a permit as an application for an individual permit unless the applicant submits a notice of intent to be covered under a general permit under this Paragraph. (e) The exclusions from the requirement to obtain a Phase II National Pollutant Discharge Elimination System (NPDES) NPDES permit for stormwater management set out in 0 Code of Federal Regulations CFR 1., including the exclusions for certain nonpoint source agricultural and silvicultural activities, apply to the provisions of this Rule. (f) In order to fulfill the post-construction minimum measure requirement for linear transportation projects, including private transportation projects constructed to North Carolina Department of Transportation standards that will be conveyed to the State or another public entity upon completion, a permittee, delegated program, or regulated entity may use the Stormwater Best Management Practices Toolbox developed by the North Carolina Department of Transportation and available at no cost at History Note: Authority G.S ; 1-1.; 1-1.1; 1-1.(a)(1); S.L. 01-1; Eff. July, 01.

13 1A NCAC 0H.01 is proposed for readoption as a repeal as follows: 1A NCAC 0H.01 POST-CONSTRUCTION PRACTICES History Note: Authority G.S ; 1-1.; 1-1.1; 1-1.(a)(1); Eff. July, 01.

14 A NCAC 0H.01 is proposed for readoption with substantive changes as follows: 1A NCAC 0H.01 POST-CONSTRUCTION STORMWATER MANAGEMENT POLICY MANAGEMENT: PURPOSE AND SCOPE The Rules in this Section set forth the requirements for application and issuance of permits for stormwater management systems in accordance with G.S (d) and 1A NCAC H.000. These requirements to control pollutants associated with stormwater runoff apply to development of land for residential, commercial, industrial, or institutional use but do not apply to land management activities associated with agriculture or silviculture unless specifically addressed in special supplemental classifications and, management strategies adopted by the Commission. The purpose of this Section is to protect surface waters and aquatic resources from the adverse impacts of stormwater runoff from development activities. (1) APPLICABILITY. This Section shall apply to development projects and major modifications of development projects for residential, commercial, industrial, or institutional use that are subject to one or more of the post-construction stormwater management programs listed in Item () of this Rule. This Section shall not apply to: (a) land management activities associated with agriculture or silviculture; (b) activities of the North Carolina Department of Transportation (NCDOT) that are regulated in accordance with the provisions of NPDES Permit Number NCS0000; (c) linear transportation projects undertaken by an entity other than the NCDOT when: (i) the project is constructed to NCDOT standards and is in accordance with the NCDOT Stormwater Best Management Practices Toolbox available at no cost at (ii) Upon completion, the project will be conveyed either to the NCDOT or another public entity and will be regulated in accordance with that entity s NPDES MS stormwater permit; and (iii) the project is not part of a common plan of development. (d) development activities that have already received a State Stormwater Permit or Certification where no modification or a minor modification is requested. These activities shall follow their existing permit conditions. (e) airport facilities that are deemed permitted in accordance with 1-1.(c) ; and (f) redevelopment as that term is defined in G.S. 1-1.(a1). () STORMWATER PROGRAMS. The post-construction stormwater management programs consist 1

15 of the following: (a) Coastal Counties 1A NCAC 0H.1; (b) Non-Coastal County High Quality Waters and Outstanding Resource Waters 1A NCAC 0H.1; (c) NPDES MS Stormwater 1A NCAC 0H.01; (d) Urbanizing Areas 1A NCAC 0H.1; and (e) Universal Stormwater Management Program- 1A NCAC 0H.0. () PERMIT REQUIRED. A permit shall be required for development activities that are subject to any of the post-construction stormwater management programs listed in Item () of this Rule. The permit shall be issued by the implementing authority in accordance with this Section. If a project is subject to more than one post-construction stormwater management program, the requirements of both programs shall apply unless otherwise required or allowed by the applicable rule of this Section. () DISPUTES REGARDING WATER QUALITY CLASSIFICATION. For stormwater programs that apply based on water quality classification, any disputes regarding water quality classification shall be determined by the N.C. Division of Water Resources pursuant to 1A NCAC 0B.01 and in accordance with G.S () VESTED RIGHTS. Development projects A development project shall be exempted from not be required to comply with this Section or shall be allowed to follow an earlier version of the Rules of this Section if a vested right is demonstrated by it is conducted pursuant to one of the following authorizations, provided that the authorization was obtained prior to the effective date of the applicable rule of this Section, and the authorization is valid, unexpired, unrevoked, and not otherwise terminated: (a) a valid building permit pursuant to G.S. 1A- or G.S. A-1; (b) a valid site-specific development plan as defined by G.S. 1A-.1(b)() and G.S. A-.1(b)(); or (c) a phased development plan approved pursuant to G.S. 1A-.1(b)() or G.S. A-.1 that shows: (i) for the initial or first phase of development, the type and intensity of uses for a specific parcel or parcels, including the boundaries of the project and a subdivision plan that has been approved pursuant to G.S. 1A-0 through G.S. 1A- or G.S. A-1 through G.S. A-,; and

16 (ii) for any subsequent phase of development, upon a finding by the Commission sufficient detail so that demonstrates to the permitting authority that implementation of the requirements of this Section to that phase of development would require a material change in that phase of development as contemplated in the phased development plan. Sufficient detail shall may include documentation of financial expenditures and contractual obligations, a copy of a site-specific development plan approved prior to the effective date of the new rules, and a narrative of how the new rules will require a material change to the subsequent phase or phases of development; or (d) a vested right to the development pursuant to common law. ()() ANTI-DEGRADATION POLICY. In accordance Development projects that are subject to this Section shall comply with the Antidegradation Policy set forth in 1A NCAC 0B.001., additional stormwater control measures may be required on a case-by-case basis to maintain and protect existing and anticipated uses of surface waters. History Note: Authority G.S ; 1-1.; 1-1.1; 1-1.(a)(1); S.L. 01-1; Eff. January 1, 1; Amended Eff. September 1, 1.

17 A NCAC 0H.0 is proposed for readoption with substantive changes as follows: 1A NCAC 0H.0 DEFINITIONS The definition of any word or phrase in this Section shall be the same as given in Article 1, Chapter 1 of the General Statutes of North Carolina, as amended. Definitions set forth in 1A NCAC 0H.0 and 0 CFR 1. and 1.(b) (1 July Edition), including any subsequent editions, are incorporated herein by reference. These federal regulations can be accessed at no cost at Other words and phrases used in this Section are defined as follows: (1) "Adverse impact" means a detrimental effect upon water quality or best usages, including a violation of water quality standards, caused or contributed to by a discharge or loading of a pollutant or pollutants. () "Best usage" means those uses of waters specified for each classification as determined by the Commission in accordance with the provisions of G.S and as set forth in 1A NCAC 0B.01, 1A NCAC 0B.000, and 1A NCAC 0B.000, et seq. (1)() "Built-upon area" or "BUA" means impervious surface and partially impervious surface to the extent that the partially impervious surface does not allow water to infiltrate through the surface and into the subsoil. "Built-upon area" does not include a slatted deck or the water area of a swimming pool. has the same meaning as in G.S ()() "CAMA Major Development Permits" means those permits or revised permits required by the Coastal Resources Commission as set forth in 1A NCAC 0J Sections.00 and.000. ()() "Certificate of Stormwater Compliance" means the approval for activities that meet the requirements for coverage under a stormwater general permit for development activities that are regulated by this Section. ()() "Coastal Counties" are means any of the following counties: Beaufort, Bertie, Brunswick, Camden, Carteret, Chowan, Craven, Currituck, Dare, Gates, Hertford, Hyde, New Hanover, Onslow, Pamlico, Pasquotank, Pender, Perquimans, Tyrrell, and Washington. () "Commission" means the North Carolina Environmental Management Commission. () "Common plan of development" means a site where multiple separate and distinct development activities may be taking place at different times on different schedules but governed by a single development plan regardless of ownership of the parcels. Information that may be used to determine a "common plan of development" include plats, blueprints, marketing plans, contracts, building permits, public notices or hearings, zoning requests, and infrastructure development plans. ()() "Curb Outlet System" means curb and gutter installed in a development that meets the low density criteria set forth in Rule.0(d)(1).0() of this Section Section, with breaks in the curb or other outlets used to convey stormwater runoff to grassed swales or vegetated or natural areas and designed in accordance with Rule.0(g) of this Section. conveyances or other vegetated areas. 1

18 () "Design volume" means the amount of stormwater runoff that an SCM or series of SCMs is designed to treat in accordance with the applicable minimum design criteria. ()() "Development" means any land disturbing activity that increases the amount of built-upon area or that otherwise decreases the infiltration of precipitation into the soil. has the same meaning as in G.S (1)(1)"Director" means the Director of the Division of Energy, Mineral, and Land Resources unless otherwise assigned by the Secretary of the Department of Environmental Quality. (1) "Discrete NRCS Curve Number Method" means a method for calculating the required treatment stormwater runoff volume whereby the model described in Urban Hydrology for Small Watersheds (NRCS Technical Report ), available at no cost at: is run twice: first, to yield runoff volume from the built-upon areas; and second, to yield runoff volume from the remainder of the project. The total required treatment volume shall be the sum of the two results. (1)(1) "Diffuse Dispersed flow" means uniform shallow flow that is conveyed to a vegetated filter strip as defined in Rule. of this Section, another ground surface vegetated area, or stormwater control measure. The purpose of "diffuse dispersed flow" is to remove pollutants via infiltration and settling, as well as to reduce erosion prior to stormwater reaching surface waters. (1)(1) "Division" means the Division of Energy, Mineral, and Land Resources unless otherwise assigned by the Secretary of the Department of Environmental Quality. ()(1)(1) "Drainage Area or Watershed" means the entire area contributing surface runoff to a single point. (1)(1) "Sedimentation and Erosion Erosion and Sedimentation Control Plan" means any plan, amended plan, or revision to an approved plan submitted to the Division of Energy, Mineral, and Land Resources or a delegated authority in accordance with G.S. A-. (1) "Existing development" means those projects that are built or those projects that have established a vested right under North Carolina law as of the effective date of the state stormwater program or applicable local government ordinance to which the project is subject, based on at least one of the following criteria:. (a) Substantial expenditure of resources (time, labor, money) based on a good faith reliance upon having received a valid local government approval to proceed with the project; (b) Having an outstanding valid building permit in compliance with G.S. 1A-.1 or G.S. A-.1; or (c) Having an approved site specific or phased development plan in compliance with G.S. 1A-.1 or G.S. A-.1. () "Forebay" means a device located at the head of a wet detention pond to capture incoming sediment before it reaches the main portion of the pond. The forebay is typically an excavated settling basin or a section separated by a low weir.

19 ()(1) "General Permit" means a permit issued under G.S (b)() and G.S (b)() authorizing a category of similar activities or discharges. (1) "Geotextile fabric" means a permeable geosynthetic comprised solely of non-biodegradable textiles. ()(0) "Infiltration Systems" means stormwater control systems measures designed to allow runoff to pass or move (infiltrate/exfiltrate) either infiltrate or exfiltrate move into the soil. soil s pore space. (1) "Intermittent stream" has the same meaning as in 1A NCAC 0B.0. () "Local government" has the same meaning as in 1A NCAC 0B.00. () "Major modification" means a modification of a state stormwater permit that is not a "minor modification" as that term is defined in this Rule. () "Minimum Design Criteria" or "MDC" means the requirements set forth in this Section for siting, site preparation, design and construction, and post-construction monitoring and evaluation necessary for the Department to issue stormwater permits that comply with State water quality standards adopted pursuant to G.S () "Minor modification" means a modification of a state stormwater permit that does not increase the net built-upon area within the project or does not increase the overall size of the stormwater control measures that have been previously approved for the project. () "0 th percentile storm" means the rainfall event with a precipitation depth greater than or equal to 0 percent of all -hour storms on an annual basis. () " th percentile storm" means the rainfall event with a precipitation depth greater than or equal to percent of all -hour storms on an annual basis. ()() "Non-erosive velocity" means the flow rate of water, usually measured in feet per second, that does not exceed the maximum permissible velocity for the condition and type of soil and groundcover over which the water is flowing. Erosion is likely to occur when the maximum permissible velocity is exceeded. Guidance on non-erosive velocity is available at no cost at ()()() "Notice of Intent" means a written notification to the Division that an activity or discharge is intended to be covered by a general permit and takes the place of the application used with individual permits. permit in lieu of an application for an individual permit. (0)() "NPDES" means National Pollutant Discharge Elimination System (1)(1)() "Off-site Stormwater Systems" means stormwater management systems that are located outside the boundaries of the specific project in question, but designed to control stormwater drainage from that project and other potential development sites. These systems shall designate responsible parties for operation and maintenance and may be owned and operated as a duly licensed utility or by a local government. (1)()(0) "One-year, -hour storm" means a rainfall of an intensity expected to be equaled or exceeded, on average, once in 1 months and with a duration of hours. the maximum amount of rainfall during a consecutive hour period expected, on average, to occur once a year. One-year,

20 hour storm depths are estimated by the National Oceanic and Atmospheric Administration (NOAA) Precipitation Frequency Data Server (PFDS), available at no cost at (1)()(1) "On-site Stormwater Systems" means the systems necessary to control stormwater within an individual development project and located within the project boundaries. ()() "Peak attenuation volume" means stormwater runoff in excess of the design volume that is conveyed to an SCM where it is not necessarily treated in accordance with the applicable MDC but rather is released by the SCM in a controlled manner to address potential downstream erosion and flooding impacts to meet federal, State, or local regulations beyond the requirements of this Section. ()() "Perennial waterbody" has the same meaning as in 1A NCAC 0B.0. ()() "Perennial stream" has the same meaning as in 1A NCAC 0B.0. (1)()() "Permeable pavement" means paving material that absorbs water or allows water to infiltrate through the paving material. Permeable pavement "Permeable pavement" materials include porous concrete, permeable interlocking concrete pavers, concrete grid pavers, porous asphalt, and any other material with similar characteristics. ()() "Person" has the same meaning as in G.S. 1-1(). () Primary SCM means a wet pond, stormwater wetland, infiltration system, sand filter, bioretention cells, permeable pavement, green roof, rainwater harvesting, or an approved new stormwater technology that is designed, constructed and maintained in accordance with the MDC. ()() "Project" means the proposed development activity for which an applicant is seeking a stormwater permit from the state or other entity in accordance with this Section. The Project shall exclude any land adjacent to the area disturbed by the project that has been counted as pervious by any other development regulated under a federal, State, or local stormwater regulation. Owners and developers of large developments consisting of many linked projects are encouraged to develop a master plan that illustrates how each project fits into the design of the large development. (0)() "Public linear transportation project" means a project consisting of a road, bridge, sidewalk, greenway, or railway that is on a public thoroughfare plan or provides improved access for existing development and that is owned and maintained by a public entity. (1)(0) "Required storm depth" means the minimum amount of rainfall that shall be used to calculate the required treatment volume or to evaluate whether a project has achieved runoff volume match. () "Required treatment volume" means the minimum amount of stormwater runoff from a high density project that shall be treated in an SCM or a series of SCMs. (1)()(1) "Redevelopment" means any land disturbing activity that does not result in a net increase in built-upon area and that provides greater or equal stormwater control than the previous development. Stormwater controls shall not be allowed where otherwise prohibited. has the same meaning as in G.S. 1-1.,

21 (1)()() "Residential development activities" "Residential development" has the same meaning as in 1A NCAC 0B.00. () Runoff treatment means that the volume of stormwater runoff generated from all of the built-upon area of a project at build-out during a storm of the required storm depth is treated in one or more primary SCMs or a combination of Primary and Secondary SCMs that provides equal or better treatment. () "Runoff volume match" means that the annual runoff volume of runoff after development does not exceed is not more than ten percent higher than the amount annual runoff volume of runoff before development, for the design storm. except in areas subject to SA waters requirements per Rule.1 of this Section where runoff volume match means that the annual runoff volume after development is not more than five percent higher than the annual runoff volume before development. (1)() Seasonal High Water Table" or "SHWT" means the highest level that groundwater, at atmospheric pressure, reaches of the saturated zone in the soil in most years. during a year with normal rainfall. The seasonal high water table is usually detected by the mottling of the soil that results from mineral leaching. () Secondary SCM means an SCM that does not achieve the annual reduction of Total Suspended Solids (TSS) of a Primary SCM but can be used in a treatment train with a primary SCM or other Secondary SCMs to provide pre-treatment, hydraulic benefits or a portion of the required TSS removal. () "Simple Method" means a method for calculating the required treatment volume using the formula V = 0 * R D * (0.0+0.*I A) * A. In this equation, V = the estimated runoff volume for the design storm, R D = design storm rainfall depth in inches, I A = impervious fraction (impervious portion of drainage area in acres/ drainage area in acres), and A = watershed area in acres. (0)()() "Stormwater is defined has the same meaning as in G.S.1-1(1a). (1)(0)() Stormwater Collection System means any conduit, pipe, channel, curb, or gutter for the primary purpose of transporting (not treating) runoff. A stormwater collection system does not include vegetated swales, swales stabilized with armoring, or alternative methods where natural topography or other physical constraints prevents the use of vegetated swales (subject to case-bycase review), curb outlet systems, or pipes used to carry drainage underneath built-upon surfaces that are associated with development controlled by the provisions of Rule.0(d)(1).0 in this Section. (1)(0) "Stormwater Control Measure" or "SCM," also known as Best Management Practice, or BMP, means a permanent structural device that is designed, constructed, and maintained to remove pollutants from stormwater runoff by promoting settling or filtration or mimic the natural hydrologic cycle by promoting infiltration, evapo-transpiration, post-filtration discharge, reuse of stormwater, or a combination thereof.

22 ()()(1) " Year Storm Ten-year storm intensity" means the maximum rate of rainfall of a duration equivalent to the time of concentration surface runoff resulting from a rainfall of an intensity expected to be equaled or exceeded, on the average, once in years, and of a duration that will produce the maximum peak rate of runoff, for the watershed of interest under average antecedent wetness conditions. " years. Ten-year storm intensities are estimated by the National Oceanic and Atmospheric Administration (NOAA) Precipitation Frequency Data Server (PFDS), available at no cost at ()()() "Vegetative Buffer" "Vegetated setback" means an area of natural or established vegetation directly adjacent to surface waters waters, through which stormwater runoff flows in a diffuse manner to protect surface waters from degradation due to development activities. The width of the buffer is measured horizontally from the normal pool elevation of impounded structures, from the bank of each side of streams or rivers, and from the mean high water line of tidal waters, perpendicular to the shoreline. ()()() "Vegetative conveyance" "Vegetated conveyance" means a permanent, designed waterway lined with vegetation that is used to convey stormwater runoff at a non-erosive velocity within or away from a developed area. () "Vegetative Filter" means an area of natural or planted vegetation through which stormwater runoff flows in a diffuse manner so that runoff does not become channelized and that provides for control of stormwater runoff through infiltration of runoff and filtering of pollutants. The defined length of the filter shall be provided for in the direction of stormwater flow. ()()() "Water Dependent Structures" means a structure for which that the use requires access or access, proximity to to, or siting within surface waters to fulfill its basic purpose, such as boat ramps, boat houses, docks, and or bulkheads. Ancillary facilities such as restaurants, outlets for boat supplies, parking lots, and boat storage areas are not shall not be considered water dependent structures. uses. () "Wet Detention Pond" means a structure that provides for the storage and control of runoff and includes a designed and maintained permanent pool volume. History Note: Authority G.S. 1-1; 1-1.1; 1-1.; 1-1.(a)(1); Eff. January 1, 1; Amended Eff. August 1, 01 (see S.L. 01-1, s.1.(f)); July, 01; December 1, 1; September 1, 1; Temporary Amendment Eff. March, 01; Amended Eff. January 1, 01.